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George Kuney/Pre-Trial Memo
George Kuney, Pro Se PO Box 2503 Philadelphia, Pennsylvania 19147 Papers for COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY vs. BOARD OF REVISION OF TAXES - NO: 001047 PRE-TRIAL MEMORANDUM INTRODUCTION OF PURPOSE There are two motivations for my coming before the Court in the instant matter: First:) To address the inappropriate tax liability upon my own property, and Second:) To answer the request of the honorable members of the Board Of Revision Of Taxes who were in attendance at my hearing on January 19, 2010, to assist them in extricating themselves from the political deadlock in which they uncomfortably serve. During said hearing, I presented the standard two page "Real Estate Market Value Appeal For Tax Year 2010" and a three page attachment to said form. Those documents are attached and marked “Exhibit A” and “Exhibit B” respectively. Following the submission of those documents, an oral exchange commenced between myself and the members of the Board. I found that discussion to be extremely respectful, intelligent and humane, as were all discussions that day between the “members” and other taxpayers before the Board. In my case, there was good humor on both sides of the discussion that revealed a common understanding of the inequities of the system and the political deadlock that sustains those inequities and confines the honorable intent of the “members” in attendance. SUBSTANCE OF DISCUSSIONS AT HEARING Following the submission and brief review of the attached exhibits, the oral discussions commenced. The following account of those discussions is my narrative and not a verbatim presentation of the exact words spoken except where quoted. The discussion centered on the fact that the less fortunate could not fight tax increases resulting in a higher tax rate for the "small guys" and lower rates for the "big guys" who could fight the system both in Court and at the Ballot Box. I argued that if assessments were accurate, then the larger total dollar values of city wide assessments would result in "more revenue than the city could spend." I then said that the result would be a lowering of the tax rate and ... (then one of the “members” broke in and said in a loud voice to a fellow board member "and he would be paying the same!" I then finished saying that I would wind up paying the same amount of taxes as before my new assessment. I stated my understanding that the political inability to make equitable changes to the system seemed to be universally acknowledged. One of the members then said "I agree with every point that you made except one ... that we could not spend the larger amount of revenue". Almost all of us laughed! I acknowledged his point and then went on to state that the political realities would be that the increased total assessed property values would necessarily cause great political pressure to lower the tax rate and that the end result would be a slightly larger net revenue than is now being raised; however, the increase in revenue would be equitable. There was a general agreement amongst the members as evidenced by verbal affirmations and head nodding. I then went into the legal arguments of both the Federal and State legal violations. The members seemed happy to have the arguments made so clearly in contrast to the pain, desperation and outrage that they normally are faced with. At this point in time, my impression of the “members” was one of being uncomfortable and compassionate at having to face the individual tax payers who came before them while still being required to administer a flawed policy. I stated that a legal argument could be made that the City, acting in an unlawful manner, has no right to collect any taxes at all; however, I understood the legitimate need and right of the City to raise revenue. I stated that I felt a duty to contribute my fair share to the City but that it was a “contribution” and not a requirement. There were smiles. I then went on to say "Gentlemen. What I am about to say I say with respect and humor. I have already brought one class action suit against the City and forced a change AND as much fun as that was, I would really rather spend the summer playing with my grandchildren". There was more laughter. I then expressed my understanding of their difficult situation and offered my services if they wanted me to bring this to the Courts. I was thanked and told I would be receiving their answer by mail. There answer was to pull back from tripling my tax to only doubling my tax. I can only conclude that the honorable gentlemen of the board are asking for my help in forcing a change upon the present distasteful situation that they find themselves in. LEGAL ISSUES TO BE DISCUSSED There are several controlling precedents to the instant matter which I will address in some detail. They are as follows: 1. Allegheny Pittsburg Coal Co. v. County Commission of Webster County 2. Clifton v. Allegheney County The fundamental principles on which those precedents, and the instant matter flow are the constitutional provisions of the following: 1. Pa Constitution Art. 8. Section 1 (The “Uniformity Clause) 2. US Constitution 14th Amendment (the “Equal Protection” Clause) Allegheny-Pittsburgh Coal Co. v. County Comm'n, 488 U.S. 336 (1989) was decided in the U.S. Supreme Court. Pennsylvania’s Constitution (Art. 8. Section 1) is like the West Virginia Constitution in relevant part as it establishes a general principle of uniform taxation so that all property, both real and personal, shall be taxed in proportion to its value. In “Allegheny” a number of actions, like the instant action, were “…consolidated and decided. The State Circuit Court held that the county's assessment system systematically and intentionally discriminated against petitioners in violation of the State Constitution and the Equal Protection Clause of the Federal Constitution.” It is my intent, if necessary, to “consolidate” a number of actions for the purpose of breaking the existing political deadlock that currently holds this taxing authorities actions as un-lawful and therefore unenforceable. In Clifton v. Allegheny County, 969 A. 2d 1197 - Pa: Supreme Court 2009, the opinion of Chief Justice Castille was clear and “on point” to the instant matter. As noted therein, “First appearing in Pennsylvania's 1874 Constitution, the Uniformity Clause prescribes that "a ll taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." The duty of the courts is addressed in PA. CONST. art. VIII, § 1.18 In 1909, wherein it is stated, in part …”It is the duty of the courts in dealing with this subject to enforce as nearly as may be equality of burden and uniformity of method in determining what share of the burden each taxable subject must bear.” It is my position that the most effective method for fulfilling that duty is for this Court to allow the claims made at the conclusion of this document in this proceeding and not through the greater appeal process or other actions. The opinion that the appeal process does not fulfill the “duty of the courts” is substantiated in “Clifton” wherein it is stated “Furthermore, even if the appeal process were a satisfactory mechanism through which to achieve uniformity in the face of widespread disparity, the appeal process only affects the property immediately before the Board. See Beattie, 907 A.2d at 527 ("While an appeal before the Board may be capable of lowering the assessment on any individual appellant's property, it does not appear that any systematic under-assessment of higher-value properties can be cured through a series of administrative appeals taken by members of the asserted class of lower-value property owners. Therefore, even if all low-value property owners have their valuations reduced to more accurate figures, the alleged discriminatory effect, though lessened, would remain.") (footnote omitted); see also Almy Report at 12-13. The successful appeals of over-assessed property owners do not decrease the values of other overassessed properties whose owners may not have the awareness, time, or wherewithal to appeal. Furthermore, successful taxpayer appeals do not increase the assessments of underassessed properties, whose owners have no reason to appeal. Assessments of underassessed properties are only "forced" into conformity with the county CLR by an appeal of an aggrieved municipal entity, most often the school district, and the extent to which taxing bodies pursue assessment appeals varies from municipality to municipality.” The situations resulting in the unconstitutional inequities that exist in Philadelphia are exactly the same conditions referenced in the above quote from “Clifton”. REQUESTED RELIEF & REMEDIES It is my position that the current tax system in unlawful and therefore not entitled to collect any tax at all. Not only is it appropriate for this Court to vacate the increase in my tax, it is also the duty of the Court to order the return of all my payments made for the current year. By law, Courts are prohibited from enforcing unlawful activities whether those activities are by individuals or municipalities. By law, criminals convicted under unconstitutional laws are exonerated. By law, money collected from unconstitutional taxing methods should be returned. I understand the enormous consequence of this claim. I wish to state to this Court and any other Courts to which this issue may be raised, that I have no wish to disrupt the legitimate and necessary right of any taxing authority to fulfill its duties. Given that statement, I am willing to be a responsible plaintiff in addressing this issue and I stand willing to negotiate an equitable and functional solution to the issues that are beyond the reach of the political process. I ask this Court to stand by its constitutional mandate in the instant matter as a vehicle to enforce the directives of the Supreme Court of Pennsylvania and the Supreme Court of the United States. This issue is best addressed on a local level between parties of good faith; however, without the impending economic calamity that would result from my claims, there will not be adequate motivation to remedy the current systemic violations of law. I am willing to accept a lengthy continuance of this matter if that will serve all interested parties. Finally, in the words of Justice Baer, concurring with the other judges in “Clifton” “I agree with the Majority's decision to remand this matter to the trial court to determine Allegheny County's progress in executing a countywide reassessment and to set a realistic timeframe for its completion. Likewise, I would urge counties whose COD exceeds twenty to begin reassessment, or to stand ready to defend the lawsuit which will inevitably come. Conversely, I would urge taxpayers whose counties' COD is less than twenty to recognize the unlikelihood of success in litigation, and to save themselves, their counties and the courts the massive resources that go into this type of litigation.” Respectfully Submitted, George Kuney, Pro Se